510 N.E.2d 1122, 157 Ill. App. 3d 682, 110 Ill. Dec. 91 1987.IL.889
Appeal from the Circuit Court of Cook County; the Hon. Alan Morrill, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Plaintiff appeals from the December 9, 1985, order of the circuit court which denied rehearing of the order which dismissed her two-count complaint with prejudice. She contends that the decision of the Illinois Department of Labor hearings referee, adopted by the Illinois Department of Labor Board of Review, denying her unemployment compensation benefits because she was discharged for misconduct connected with her work, did not preclude an action in the circuit court based on retaliatory discharge.
Pertinent to our Disposition are the following facts. Plaintiff was employed by defendant from September 4, 1976, to August 30, 1983, at which time she was fired. On August 17, 1982, the plaintiff filed an application for adjustment of claim with the State of Illinois Industrial Commission for the injuries she sustained while working on April 6, 1982. The application was still pending before the Industrial Commission on the date defendant terminated the plaintiff's employment. Plaintiff alleges that on June 15, 1983, she was told by an agent of defendant that her work would be closely scrutinized as a result of the filing of the application. On August 30, 1983, plaintiff was late to work and was subsequently fired.
Shortly after her discharge plaintiff applied for and received unemployment compensation benefits. Defendant appealed that grant of unemployment benefits before a hearings referee of the Illinois Department of Labor. The hearings referee, after hearing the evidence presented, ruled against plaintiff, concluding that:
"The claimant's continued tardiness after so many warnings indicates a conscious disregard of the employer's best interests. She was discharged for misconduct connected with work."
Pursuant to statute, plaintiff appealed to the Board of Review of the Department of Labor. In its decision the Board of Review adopted the findings of fact and decision of the hearings referee and disqualified plaintiff from receiving unemployment benefits. Plaintiff did not appeal the decision of the Board of Review.
Plaintiff then filed the instant action in the circuit court of Cook County alleging that defendant wrongfully discharged her for exercising her rights and remedies under the Illinois Workers' Compensation Act. (Ill. Rev. Stat. 1985, ch. 48, par. 138.4.) Defendant moved to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(4)) alleging that an essential element of plaintiff's claim, the cause of her discharge, had been adjudicated in a prior proceeding between the parties. On September 3, 1985, defendant's motion was granted. On September 27, 1985, plaintiff filed a motion for rehearing. On December 9, 1985, that motion was denied.
The doctrine of res judicata bars a second adjudication where there is a former adjudication on the merits by a court of competent jurisdiction. (Yan v. Beeghly (1982), 109 Ill. App. 3d 627, 440 N.E.2d 1066.) In order to invoke the bar of res judicata an identity of parties, subject matter, and the cause of action must exist between the two actions. O'Neil v. Delaney (1980), 92 Ill. App. 3d 292, 415 N.E.2d 1260.
Plaintiff contends that the Illinois Department of Labor's (Department's) finding is not binding upon her subsequent retaliatory discharge action because the claims do not constitute the same cause of action. We do not agree. To prevail in an action for retaliatory discharge an employee must show that he was discharged in violation of clearly mandated ...